John Beaumont, Kt., C.J.
1. In this case the plaintiffs sued for possession of certain property which had belonged to a lady named Bai Moti. The defendant is the person in possession of the property. Both the lower Courts held that Bai Moti was married in unapproved form. That rinding ischallenged in this second appeal on the ground that there is no evidence to support it. The lower Courts relied on exhibits 59 and 60, which purported to be accounts showing that a price had been paid on the marriage of Bai Moti, and that would constitute marriage in unapproved form. The exhibits are not signed, and there is nothing on the face of them to show by whom they were written. The lower Courts both relied on the presumption arising under Section 90 of the Indian Evidence Act, but that section does not apply. It only provides that documents more than thirty years old coming from proper custody prove themselves, but it does not involve any presumption that the contents of the documents are true. I think, however, that the documents may be admitted in evidence under Section 32, Sub-section 2, of the Indian Evidence Act, on the ground that they appear to be accounts written by some clerk in the ordinary course of business, and seeing that they are more than seventy years old, it is obvious that the clerk who wrote them must be dead. I will assume, therefore, that the rinding of the lower Courts as to marriage being in unapproved form is correct.
2. The question then arises who is entitled to Bai Moti's property. The general principle which is stated in Mulla's ' Principles of Hindu Law ', 8th Edition, page 145, is not disputed, and is in the following terms :-
Where a woman dies without leaving any issue, her stridhan of every description (except sulka) goes, if her marriage took place in an approved form to her husband, and failing him,... to his heirs. But if the marriage took place in an unapproved form, it goes to her mother, then to her father, and then to her father's heirs.
3. As I have said, the accuracy of that proposition is not disputed. But the lower Courts have found as a fact that there are no heirs of Bai Moti's father, and the question, therefore, is whether in that event her property goes to her husband's heirs, who are now represented by the plaintiffs. There seems to be no authority upon the point. Presumably if the husband's heirs do not take, the property must escheat to the Crown, and it certainly seems startling that a married woman's property should escheat to the Crown when she left a husband or heirs of her husband.
4. In Kanahammal v. Anmthamathi Ammal I.L.R. (1912) 37 Mad. 293 which was dealing with a marriage in approved form, it was held that on failure of the husband's sapindas the blood relations of the propositus were entitled to succeed to the exclusion of the Crown, and came in as a sort of second line of inheritance. That case was followed by this Court in Ganpat Rama v. Secretary of State for India I.L.R. (1920) 45 Bom. 1106 : 23 Bom. L.R. 462. Mr. Justice Macleod (as he then was) quoted with approval a passage from the judgment of the Madras High Court in which the learned Judges said (p. 295) :-
Passing to the second point, it is argued on behalf of the appellant, that on failure of husband's sapindas qualified to succeed the line of succession is exhausted, and the property escheats to the state.
This is a doctrine contrary to the general spirit of Hindu law of inheritance, and one to which we should be loth to give effect. It is unsupported by any text to which our attention has been drawn.
5. It is argued that we should apply the analogy of that case to the case of an unapproved marriage and should hold that on failure of the heirs of a woman's father her husband's heirs should be taken as a second line of inheritance. In my opinion, that is the right view. As was pointed out by Mr. Justice Chandavarkar in Janglubai v. Jetha Appaji I.L.R. (1908) 32 Bom. 409 : 10 Bom. L.R. 522 in a marriage in unapproved form the husband and wife become one and the husband, therefore, becomes the sapinda of the wife. It seems to follow logically that if the wife dies and no regular heirs to her estate can be found, the husband, as her sapinda, must be entitled to succeed by himself or his heirs. That was the view taken by the trial Judge, but in appeal the learned District Judge took the view that the plaintiffs could not succeed as this was a case of unapproved marriage. I think the decision of the trial Court is right. The appeal is, therefore, allowed and the plaintiffs' claim is decreed with costs throughout.
6. I agree. The lower appellate Court, following Janglubai v. Jetha Appaji I.L.R. (1908) 32 Bom. 409 : 10 Bom. L.R. 522 held that succession to the stridhan of a woman who is married according to the unapproved rites is governed by the same principles as govern succession to the stridhan of a maiden. This conclusion was apparently based on the fact that in the case of a marriage in an unapproved form the gotra of the bride is not changed, a fact to which Mr. Justice Chandavarkar has referred in the above decision. It seems to me that arguments based on the fact that the bride's gotra does not change in such marriage cannot carry much weight, for in the case of the marriage of a woman in an approved form there is a change of gotra and yet it is conceded that in certain contingencies, viz., on failure of her husband's heirs, her stridhan properties go to her blood relations, who must be persons of a different gotra. Therefore, succession in the case of stridhan property cannot always be confined to persons, of the same gotra, and on that ground it cannot be said, as the appellate Judge has said, that the husband's heirs are not entitled to succeed ' in any event.' In Janglubai v. Jetha Appaji it is pointed out by Chandavarkar J. that whatever the form of marriage, the same sapindaship is shared by both the husband and the wife. That being so, the position of a woman married according to unapproved rites with regard to her stridhan property need not be assumed to be the same as that of a maiden, though the commentator of the original text in the Mitakshara, Mitramisra, has named the same heirs after those enumerated in such text as having the right to inherit in the case of both a maiden and a woman married according to an unapproved form. The text and the commentary in my opinion do not contemplate the case in which there is a failure of the heirs described therein. In the Mitakshara the list of the enumerated heirs was certainly not exhaustive, as the commentary of Mitramisra shows. It is difficult to say, therefore, that the heirs named by Mitramisra were intended to constitute an exhaustive list, There is, therefore, in my opinion, considerable force in the line of reasoning adopted by the learned trial Judge. The present is a case ofasure marriage, which is one of the recognised forms of marriage, and on principles of natural justice there does not seem to be any reason for excluding, in the case of the stridhan of a woman married by unapproved rites, the heirs of her husband, who are her sapindas by marriage, where there is a failure of the heirs enumerated in the text and those named in the commentary. There is no presumption, in my opinion, in such cases, that such persons are excluded from the heirship. There is no text specifically excluding all heirs who are not mentioned, and there does not appear to be any intention that on failure of the heirs that are mentioned, the property is to escheat to the Crown. In Kanakammal v. Ananthamathi Amma I.L.R. (1912) 37 Mad. 293 also there was an absence of text on the point which their Lordships had to decide, and the decision was actually based on observations to be found in Dr. Banerjee's book ' Hindu Law of Marriage and Stridhan' and in West and Buhler. On the same principle, I think, we are entitled to hold that the view taken by the trial Court is correct and that the husband's heirs are entitled to succeed in the present case.